Michigan Journal of International Law最新文献

{"title":"Trade and Inequality: Economic Justice and the Developing World","authors":"F. Garcia","doi":"10.2139/SSRN.240611","DOIUrl":"https://doi.org/10.2139/SSRN.240611","url":null,"abstract":"This article develops a Rawlsian framework for the evaluation of the justice of contemporary international trade law. Given the problem of inequality between states, liberal justification of the contemporary international economic system requires wealthier states to pursue redistributive policies through international trade law, as a consequence of an international version of Rawls' second principle of justice. In fact, international trade law recognizes the principle of special and different treatment towards developing states, which under this analysis can be seen as one response to the redistributive imperative. If so, then contemporary special and differential treatment practice in the WTO and in U.S. hemispheric trade policy, and in the contemplated Free Trade Area of the Americas, must be significantly reformed if special and differential treatment is to serve as a policy through which wealthier states can discharge their moral obligations, and the article concludes with recommendations for appropriate changes.","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"325 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2000-10-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123467205","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"As-Salāmu `Alaykum? Humanitarian Law in Islamic Jurisprudence","authors":"Karima E. Bennoune","doi":"10.4324/9781315092515-9","DOIUrl":"https://doi.org/10.4324/9781315092515-9","url":null,"abstract":"","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"81 6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1994-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126021011","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Privacy Cost of Currency","authors":"Karin Thrasher","doi":"10.36642/MJIL.42.2.PRIVACY","DOIUrl":"https://doi.org/10.36642/MJIL.42.2.PRIVACY","url":null,"abstract":"Banknotes, or cash, can be used continuously by any person for nearly every transaction and provide anonymity for the parties. However, as digitization increases, the role and form of money is changing. In response to pressure produced by the increase in new forms of money and the potential for a cashless society, states are exploring potential substitutes to cash. Governments have begun to investigate the intersection of digitization and fiat currency: Central Bank Digital Currencies (“CBDC”).\u0000\u0000States have begun researching and developing CBDCs to serve in lieu of cash. Central banks are analyzing the potential for a CBDC that could be made available to the public and serve as a substitute for cash by providing an alternate, safe, and robust payment instrument. However, the greatest attribute of cash is that it protects purchaser anonymity. Fully eliminating cash, without a substitute that safeguards anonymity, would undermine privacy of individuals. The creation of a CBDC in response to the potential cashless society raises the question whether the anonymity previously provided by cash must be safeguarded by the state. This note posits that a central bank in a cashless society must opt for the token-based form of CBDC, which provides the most privacy to individuals. States that choose an account-based CBDC will be in violation of fundamental international privacy principles.\u0000\u0000This note begins by drawing the crucial distinction between account-based and token-based currencies. Then, this note argues that the broad right to privacy in the digital age is inclusive of personal financial data; this data is subject to the lawful and arbitrary standards of article 17 of the International Covenant on Civil and Political Rights (“ICCPR”). Applying the ICCPR framework, it becomes abundantly clear that the privacy of individuals must be protected, even in the rapidly changing landscape of payments in the digital age.","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129491010","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Litigating Terror in The Sinai After The Egyptian Spring Revolution: Should States Be Liable to Foreign Investors for Failure to Prevent Terrorist Attacks?","authors":"R. Howse, Amin R. Yacoub","doi":"10.36642/mjil.43.3.litigating","DOIUrl":"https://doi.org/10.36642/mjil.43.3.litigating","url":null,"abstract":"The ambiguity of the due diligence standard of the Full Protection and Security obligation in investment treaties persists to this day. A recent ICSID tribunal found a developing state liable for breaching the Full Protection and Security obligation due to its inability to protect a foreign investment against terrorist attacks in a remote deserted area. In this article, we analytically criticize the Ampal v. Egypt arbitral award against the comprehensive factual matrix behind the case. Based on our criticism of Ampal, we argue that developing states should not be liable for failing to prevent or stop terrorist attacks under the Full Protection and Security obligation when they exert efforts relevant to their limited capacity to offer such protection. Further, we argue that investors should also optimize political risk insurance offered by the Multilateral Investment Guarantee Agency when they choose to invest in a host state that might be vulnerable to terrorist attacks, might face potential insurgencies, or suffer from political turmoil. Finally, we highlight the importance of integrating other subfields of international law – such as international human rights law – to the international investment arbitration system, especially in defining what acts or omissions are required of a host state to fulfill the due diligence standard of the Full Protection and Security Obligation.","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"5 6","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114113688","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The New Law and Economic Development: The Future of Law and Development: Second-Generation Reforms and the Incorporation of the Social","authors":"Kerry Rittich","doi":"10.1017/CBO9780511754425.006","DOIUrl":"https://doi.org/10.1017/CBO9780511754425.006","url":null,"abstract":"level but which become clear by focusing not only on efficiency, but on the full range of things rules and institutions actually do. An important part of the task is simply to illustrate the point made at the outset, which is that legal norms and institutions operate in multiple modes: normative, distributive, constitutive, and disciplinary. Another is to observe that the rules that govern economic transactions in industrialized states have always served multiple functions the enhancement of efficiency is but one. To reduce the focus of the reform of legal rules and institutions to concerns about efficiency and market failures, even assuming that the calculus that underpins these efforts is adequate,130 is to miss many of their other properties and effects and to radically reduce in scope the aspirations driving legal regulation. Using historical or genealogical, doctrinal, sociolegal, and other analyses, legal scholars can assist in demonstrating how and why the associations between some institutions and both economic growth and social justice may be unsafe, only loosely connected, largely contingent or alternatively more plausible and robust in any particular context. But above all, such analyses can disclose how they are variable and contested. This, in turn, might provoke a reconsideration of the status both of the rules and institutions that are in vogue and those that are currently discredited. In addition, a historical perspective of any substantial duration is likely to trouble the static image oflaw that often prevails in development debates, illustrates the dynamic, unstable, and transitory nature of legal forms, and suggests the reasons that legal rules and institutions might be viewed as a contingent settlement of interests, values, and concerns. However, legal scholars are also in a position to point out possible synergies between the two sides of the agenda that may exist via different institutional reforms. They may also observe internal conflicts in the commitment to economic agenda itself that remain invisible because of the ideological commitment to the current reform agenda. It is very unclear, for example, that better aggregate economic effects are necessarily generated by the \"deregulated\" labor markets the IFIs now favor; it is almost certainly true that categorical claims about their effects cannot be maintained across the board. But the argument also cuts in the other direction: such analyses might also remind those wedded to social justice through human rights or equality claims that social agendas can be furthered in a variety of ways, and that rights, even if institutionalized in particular ways, are no guarantee of progressive outcomes, particularly in the widely varying contexts in which they are now expected to operate. 130 There are powerful analyses that suggest how and why both the standard modes of assessing efficiency within the IFIs and the association of efficiency enhancement with particular institutional for","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"18 11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126246636","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Use of Soft Law in the Creation of Legal Norms in International Commercial Law: How Successful Has It Been?","authors":"Henry Henry","doi":"10.36642/mjil.40.3.use","DOIUrl":"https://doi.org/10.36642/mjil.40.3.use","url":null,"abstract":"In this Article, I examine several interrelated points. After defining soft law in Part II, I briefly set out some of the assumed advantages soft law instruments may have over legislation and regulations in Part III. In Part IV, I examine why some soft law instruments in international commercial law have been successful in creating international legal norms. In this Part, I specifically examine the UNIDROIT Principles of International Commercial Contracts to show how one might gauge success by looking beyond the express purpose of the instrument. I also compare the UNIDROIT Principles of Commercial Contracts with the American Law Institute’s Restatements of Law to show different ways in which soft law instruments might be successful. In Part V, I examine the role international commercial trade usage may play in soft law. Finally, in Part VI, I suggest that the benefits of soft law in international commercial law might only be fully realized over a long timeframe.","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"60 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126547863","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Keeping the Barbarians at the Gates: The Promise of the UNESCO and UNIDROIT Conventions for Developing Countries","authors":"MichaelD.E. Goodyear","doi":"10.36642/mjil.41.3.keeping","DOIUrl":"https://doi.org/10.36642/mjil.41.3.keeping","url":null,"abstract":"The illicit trade in cultural property is a global phenomenon, powered by criminal networks and smuggling trains that sacrifice local culture for the black market of the art world. Headlines featuring the Islamic State’s lucrative exchange in stolen cultural property, among other incidents, have raised the profile of the illicit cultural property trade on the global stage. Developing countries, as the most prominent source countries of cultural property, are particularly at risk. Existing scholarship has searched for a solution to this crisis, suggesting a new international treaty to protect cultural property or recommending the utilization of adjacent legal fields. However, these solutions overlook the ready benefits of two existing international treaties on cultural property, the United Nations Educational, Scientific and Cultural Organization (“UNESCO”) and United Nations International Institute for the Unification of Private Law (“UNIDROIT”) Conventions.\u0000\u0000While the UNESCO and UNIDROIT Conventions do not provide an absolute solution to the illicit cultural property trade, they are accessible and underutilized options that are particularly calibrated to assist developing countries. Increased ratification of the UNESCO and UNIDROIT Conventions would grant source country States Parties the enforcement benefits of the import regulations and domestic court systems of market country States Parties, and the strength of the Conventions would rise as the number of signatories increases. The costs imposed on developing country signatories are deliberately low to aid them in protection and recovery. Furthermore, the adoption of these two Conventions does not constrain States Parties from contemplating and implementing additional mechanisms to further protect cultural property. The UNESCO and UNIDROIT Conventions thus offer ready, underutilized options for developing countries to better protect their cultural property.","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131470445","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Possibility of Prosecuting Corporations for Climate Crimes Before the International Criminal Court: All Roads Lead to the Rome Statute?","authors":"Donna Minha","doi":"10.36642/mjil.41.3.possibility","DOIUrl":"https://doi.org/10.36642/mjil.41.3.possibility","url":null,"abstract":"Due to rapid developments in climate science, scientists are now able to quantifiably link significant greenhouse gas emissions caused by major oil and gas corporations to specific climate impacts. These scientific advances have been accompanied by the publication of documents and studies suggesting that the oil and gas industry allegedly had knowledge of climate change as early as sixty years ago, and yet it actively worked to promote climate change denial and to delay governmental regulation on this matter. Though climate-related litigation is proceeding against the industry in different jurisdictions, proceedings brought against oil and gas corporations mainly focus on actions at the national level, seeking damages for climate change impacts and on lawsuits brought by state Attorneys General in the United States. There has not been any attempt to hold these companies criminally accountable in the international sphere for the widespread and irreversible global consequences of their alleged conduct. \u0000\u0000This article examines whether fossil fuel corporations––or their officials––should be held accountable for their alleged conduct at the international level, and, in particular, whether these corporations (or corporate officials) could be investigated and prosecuted for the crimes listed in the Rome Statute of the International Criminal Court. Through this prism, this article aims to evaluate a broader question: whether the Rome Statute is applicable for the prosecution of corporate environmental crimes. In this sense, the article engages with the most recent policy paper by the ICC’s Office of the Prosecutor—which set forth, inter alia, the goal of prosecuting Rome Statute crimes that result in the destruction of the environment—and further explores the suitability of such proceedings for corporate actions.","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"357 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115939492","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Sovereign Immunity, the AU, and the ICC: Legitimacy Undermined","authors":"Christa-Gaye Kerr","doi":"10.36642/mjil.41.1.sovereign","DOIUrl":"https://doi.org/10.36642/mjil.41.1.sovereign","url":null,"abstract":"This note examines how the International Criminal Court’s indictment of African leaders has led to a breakdown in the relationship between the Court and the African Union and offers solutions to repair this relationship. In particular, the ICC’s blanket rejection of sovereign immunity and its close relationship with the UNSC delegitimize the Court. As an organization that relies on the cooperation of states across the world, this is something the Court cannot afford. The ICC’s decade-long fight with the African Union over the disproportionate number of charges leveled against African nationals has weakened its stature with African states. This has led the AU to call for a mass withdrawal of African nations from the ICC and to propose the implementation of its own regional court to handle international matters. As a solution to repair its relationship with the AU, this note proposes that the Court sever or lessen its relationship with the United Nations Security Council, which causes it to be more political than its original mandate intended; return to the broad principles of justice that convinced African nations to sign the Rome Statute; and work with the legal and cultural institutions of the region to help foster cooperation among interested parties.","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"133 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123627673","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Fresh View on the Hard/Soft Law Divide: Implications for International Insolvency of Enterprise Groups","authors":"Irit Mevorach","doi":"10.36642/mjil.40.3.fresh","DOIUrl":"https://doi.org/10.36642/mjil.40.3.fresh","url":null,"abstract":"It is the orthodox belief that treaties and—within the EU—directly applicable regulations represent hard, binding international law, while other international instruments—including model laws—are forms of soft law. In a previous publication(The Future of Cross-Border Insolvency: Overcoming Biases and Closing Gaps), I discussed how the traditional distinction between hard and soft law is less firm, due particularly to economic and behavioral implications of instrument choice and design. Building on that analysis, this Article focuses on the new rules for the international insolvency of enterprise groups in the Recast EU Insolvency Regulation 2015 (the “EIR”) and in the forthcoming UNCITRAL model law on enterprise groups. Contrasting the instruments and using a multi-layered assessment illustrates the blur between hard and soft law. This Article argues that only on the first layer—the agreement to participate in the international instrument—is the EIR (chapter on groups) robustly harder than the UNCITRAL instrument. On the second and third layers—enforcement of the instrument and the agreement on hard, more complete rules within it—the UNCITRAL instrument is almost as hard or even harder than the EIR and, as such, more promising. The Article also provides certain concrete conclusions regarding the way that regional and global regimes may be hardened in the future to meet the challenges of enterprise groups’ insolvencies.","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128328014","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}